The Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 creates two new statutory offences in South Africa: a hate crime, committed when an ordinary crime such as assault or damage to property is motivated by prejudice against a listed characteristic like race, religion, sexual orientation or albinism, and hate speech, committed when someone communicates material that is harmful or promotes hatred on those grounds outside the Act’s protected exemptions.
The Act was signed into law in May 2024 and commences on a date the President fixes by proclamation, so its practical effect depends on its commencement. Even before it operates, racist and dehumanising expression is already actionable: as crimen injuria in the criminal courts and as hate speech complaints in the Equality Courts under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
This guide explains the two offences, the protected grounds, the exemptions, and the penalties, so you know exactly where the legal lines now sit.
What Is a Hate Crime Under the Act
A hate crime is not a new stand-alone offence. It is an existing crime, such as murder, assault, robbery, crimen injuria or malicious injury to property, committed with a bias or prejudice motive: the offender targeted the victim because of a listed characteristic. The motive becomes an element that the State must prove beyond reasonable doubt.
The listed grounds cover race, ethnicity or social origin, religion, conscience or belief, culture, language, gender identity or expression, sexual orientation, albinism, age, disability, HIV status, nationality, and migrant or refugee status, among others. An assault on a person because that person is gay, or vandalism of a mosque or synagogue because of the congregation’s faith, becomes a hate crime on top of the underlying offence.
What Is Hate Speech Under the Act
The hate speech offence targets communication that is harmful or incites harm, and that promotes or propagates hatred, on a listed ground. The communication can be words, images, gestures or posts, and the offence extends to distributing or making available such material, which reaches forwards, reposts and group chats.
The offence is aimed at the worst material: content that dehumanises a group or calls for harm against it. Courts will interpret the provision against the Constitution, which protects both dignity and freedom of expression, and expression that is genuinely political, academic or artistic falls in a different space.
The Exemptions: What the Act Does Not Criminalise
- Fair and accurate reporting or commentary in the press, published in the public interest.
- Academic or scientific inquiry, and bona fide artistic creativity, interpretation or performance.
- Bona fide religious interpretation, proselytising or espousing of any religious tenet or belief, done in good faith and in the proper context of a religious practice.
These exemptions were the most contested part of the Act’s journey through Parliament, and they matter practically: a sermon, a satire, or a news report quoting hateful words is not automatically hate speech. Context, intent and good faith decide.
Penalties
The Act’s penalty provisions provide for a fine or imprisonment for a hate speech conviction, up to three years for a first conviction and up to five years for subsequent convictions. Hate crimes are sentenced in line with the underlying offence, with the bias motive treated as seriously aggravating, and the Act provides for imprisonment of up to eight years for hate crimes in its sentencing framework.
Alongside criminal consequences, the Equality Courts remain open under PEPUDA for civil hate speech complaints, with remedies that include apologies, damages and orders to refrain. A person can therefore face an Equality Court complaint, criminal prosecution, and dismissal from employment for the same material, where the facts justify each.
How This Works With the Existing Law
| Route | Law | Outcome |
|---|---|---|
| Criminal: crimen injuria | Common law | Criminal record, fine or imprisonment for seriously impairing dignity |
| Criminal: hate speech | Act 16 of 2023, on commencement | Fine or imprisonment up to 3 years first conviction, 5 years thereafter |
| Criminal: hate crime | Act 16 of 2023, on commencement | Underlying offence sentenced with the bias motive as an aggravating element |
| Civil: Equality Court | PEPUDA 4 of 2000 | Apology, damages, interdicts; no criminal record |
| Civil: defamation | Common law | Compensation for reputational harm |
Common Mistakes to Avoid
- Assuming private messages are safe. Screenshots travel, and forwarding harmful material is itself covered by the offence.
- Mistaking offence for hate speech. Insulting or rude is not automatically unlawful; the material must be harmful or hatred-promoting on a listed ground.
- Ignoring the exemptions. Reporting, academic work and bona fide religious teaching are protected, so context must be argued, not assumed lost.
- Responding to hate speech with hate speech. The reply is also a communication, and both parties can end up charged.
- Deleting instead of preserving. If you are the target, preserve the evidence; if you are the author, deletion after publication rarely helps and can look like concealment.
- Waiting for commencement news before getting advice. Existing remedies under crimen injuria and PEPUDA are available now.
Frequently Asked Questions
What is a hate crime under the Hate Crimes and Hate Speech Act?
A hate crime is an ordinary crime, such as assault, robbery or malicious damage to property, committed with a bias motive: the victim was targeted because of a listed characteristic like race, religion, sexual orientation, gender identity, albinism, HIV status or nationality. The bias motive must be proved beyond reasonable doubt and is treated as seriously aggravating at sentencing.
What is hate speech under Act 16 of 2023?
Hate speech is communication that is harmful or incites harm and promotes or propagates hatred against a group identified by a listed ground such as race, ethnicity, religion, sexual orientation or albinism. It includes distributing or making such material available. Fair reporting, academic and artistic work, and bona fide religious interpretation in context are exempted.
What are the penalties for hate speech in South Africa?
Under Act 16 of 2023 the penalty for hate speech is a fine or imprisonment, up to three years for a first conviction and up to five years for later convictions. Separately, an Equality Court under PEPUDA can order an apology, damages or an interdict, and criminal charges such as crimen injuria can apply to the same conduct.
Is the Hate Crimes and Hate Speech Act in force yet?
The Act was signed in May 2024 and commences on a date the President fixes by proclamation in the Government Gazette, so check its current status before relying on it. However, seriously degrading racist expression is already prosecutable as crimen injuria, and hate speech complaints can already be brought in the Equality Courts under PEPUDA.
Facing a hate speech complaint or charge? Otrebski Attorneys’ team in Sandton handles criminal defence and Equality Court matters. Call 060 500 3098 or book an appointment.
Disclaimer. This article is general legal information, not legal advice. The Act’s commencement and interpretation are still developing, so confirm the current position with an admitted attorney, the National Prosecuting Authority or the Equality Court nearest to you.